COMMONWEALTH OF VIRGINIA v. DANNY RAY AYERS
COURT OF APPEALS OF VIRGINIA
November 30, 1993, Decided
Appellee was declared an habitual offender under Virginia law on February 7, 1992, based on three convictions rendered against him in the state of North Carolina. His driving record showed four North Carolina convictions, two for driving under the influence (DUI) and two for driving on a suspended license. The DUI convictions were based on offenses committed after July 1, 1986, the effective date of the 0.10 percent “per se” provisions of Code § 18.2-266(i). Appellee filed a motion to set aside the habitual offender order on the ground that his DUI convictions could not be used as predicate offenses under the Habitual Offender Act because the North Carolina statute under which he was twice convicted was not substantially similar to the Virginia statute. At the hearing on February 25, 1992, the trial court agreed and entered an order on March 3, 1992, setting aside appellee’s habitual offender adjudication. The state appealed an order of the Circuit Court of Montgomery County.
Issue:
Whether the North Carolina DUI law under which appellant was twice convicted, N.C. Gen. Stat. § 20-138.1(a)(2), “substantially conforms” to Virginia’s DUI law, § 18.2-266?
Whether the trial court erred in vacating appellee’s habitual offender adjudication?
Discussion:
Appellee was twice convicted of DUI under N.C. Gen. Stat. § 20-138.1(a)(2). N.C. Gen. Stat. § 20-4.01(33a) defines “relevant time after the driving” as “any time after the driving in which the driver still has in his body alcohol consumed before or during the driving.” A careful reading of this statute reveals that it contains a conclusive presumption that does not require that the accused have any particular blood alcohol concentration (BAC) at the time of driving, so long as he consumed no additional alcohol between the time of the stop and the time of the test. Under the corresponding Virginia statute, by contrast, it is “unlawful for any person to drive or operate any motor vehicle … while such person has a blood alcohol concentration of 0.10 percent or more ….” Va. Code § 18.2-266(i). A defendant prosecuted under Code § 18.2-266(i) may introduce evidence to show that, despite his blood alcohol concentration of at least 0.10 percent on a subsequently administered test, his blood alcohol concentration at the time of driving was less than 0.10 percent. In North Carolina, such evidence would be irrelevant, for the statute contains a conclusive presumption which allows conviction of anyone with a BAC of 0.10 percent at the time of the test. Although a defendant in North Carolina would still be free to attack the accuracy of the test, his or her BAC at the time of driving is irrelevant. The applicable North Carolina law contains a conclusive presumption; therefore the statute is not substantially conforming under Code § 46.2-351. Accordingly, because appellee’s North Carolina DUI convictions could not properly be used as predicate offenses, the trial court did not err in vacating appellee’s habitual offender adjudication.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm’s unofficial views of the Justices’ opinions. The original opinions should be consulted for their authoritative content
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